Prepared Remarks of Attorney General Alberto R. Gonzales at
George Mason University

October 18, 2005

Good afternoon.

This past summer proved to be a period of historic change for our nation. We
saw the passing of a great Chief Justice of the United States, William
Rehnquist, and a retirement announcement by another distinguished justice,
Sandra Day O’Connor. We have also seen the President put forward two
extraordinary choices to fill their seats and to carry on the great mission
entrusted to our nation’s Supreme Court.

Few presidential decisions are more important than lifetime appointments to the
federal bench. As you know, these appointments often represent a President’s
most enduring legacy.

Almost two decades ago, for example, President Reagan had a similar opportunity
to nominate a Chief Justice and Associate Justice at the same time. Though
Chief Justice Rehnquist has passed on, the decisions of the Rehnquist Court
will continue to guide our nation for decades.

Understandably our attention has been focused recently on nominations to the
Supreme Court, but a President’s “judicial legacy” is not confined to
appointments to that Court. Rather, a President’s greatest impact on our legal
system may be his appointments to the lower courts. Of the millions of cases
filed every year in state and federal courts fewer than 100 will ever be heard
by the Supreme Court. In fact, the rulings that affect our daily lives are
most often handed down by district judges and circuit courts.
Today, I would like to talk a little bit about the importance of how we as a
nation view the Constitution—and how important it is that our judges, and our
debate about judges reflect the intent of our nation’s founders as well as that
founding document.

President Bush has repeatedly made clear how seriously he takes his
constitutional responsibility to appoint federal judges at all levels. He
campaigned on the promise that, if elected, he would nominate conservative
judges.

Five years later, the President is committed to keeping his promise. He has
nominated judges he believes will not bend the law based on personal
preferences but stand firm on the principals of judicial restraint... judges
who adhere to the plain meaning of statutes, who faithfully apply the text of
our Constitution, and who follow the law to the result it requires—no matter
the policy or political ramifications.

As of a few weeks ago, this President had nominated and the Senate had confirmed
41 court of appeals judges and 172 district judges. Together, these judges will
form a lasting part of President Bush’s legacy, putting into practice the ideal
that judges must not legislate from the bench.

While these appointments alone would be an enduring contribution to the rule of
law, two vacancies on the Supreme Court have provided the President a historic
opportunity to shape the course of justice for years to come—an opportunity
like the one President Reagan seized in elevating Chief Justice Rehnquist and
appointing Justice Scalia.

President Bush has responded by nominating John Roberts and Harriet Miers.
Chief Justice John Roberts has already been confirmed. His confirmation
hearing testimony makes for a compelling civics lesson: He explained
eloquently the appropriate role of a judge in our constitutional system. One
of his responses is worth quoting at some length. He said:

I don’t think the courts should have a dominant role in . . . addressing
society’s problems. It is their job to say what the law is . . . And, yes,
there will be times when either the Executive Branch or the Legislative Branch
exceeds the limits of their powers under the Constitution or transgresses one
of the provisions of the Bill of Rights, and then it is emphatically the
obligation of the courts to step up and say what the Constitution provides, and
to strike down either unconstitutional legislation or unconstitutional Executive
action.

But the Court has to appreciate that the reason they have that authority is
because they’re interpreting the law, they’re not making policy, and to the
extent they go beyond their confined limits and make policy or execute the law,
they lose their legitimacy.

In voting to confirm Chief Justice Roberts, the Senate also confirmed the
importance of the proper role of the unelected judiciary in our system of
government.

The President’s other nominee to the Court, Harriet Miers, is likewise an
extraordinary candidate.

Like virtually every other lawyer and judge who knows her well, I would
describe Ms. Miers as an accomplished litigator, a careful advocate for her
clients and a consummate professional—a woman who has always been well prepared
to discharge every responsibility and meet every challenge.

She has proven herself to have many qualities that will benefit her on the
Court. First, as a successful litigator of complex federal and state cases,
she had to master every nuance of the legal arguments at issue. As an advocate
she has demonstrated time and again the skill and intelligence to analyze a
statute or regulation or defend a constitutional principal. She has the proven
capacity to understand difficult legal concepts in various disciplines and to
explain them in a persuasive manner to a judge or jury—the same skills that are
essential when you sit on the bench and work with fellow judges.

Second, Ms. Miers’ work as Staff Secretary for the White House shows her
disciplined legal mind and attention to detail. In this role, she was
responsible for ensuring that no piece of paper went to the President unless it
was perfect in form and content. To do this job, she had to master fully
complex legal and policy issues. She had to understand and consider the
context of every sentence of every document, including many that raised
important constitutional issues such as federalism, freedom of religion,
freedom of speech, the war on terror, and the separation of powers.

Finally, as the Counsel to the President Ms. Miers confronts daily
constitutional issues, from advising on the constitutionality of proposed
legislation to defending the institution of the Presidency under the principle
of separation of powers. As her predecessor in that position, I know the
substantive demands of that position and the trust being invested by the
President.

For these and other reasons, I believe Ms. Miers is qualified to serve on the
Supreme Court. But you do not have to take my word—listen to her words as she
responds to questions in her confirmation hearings. The Senate—and the
American public—will learn more then about Ms. Miers’ qualifications and her
approach to judging. I believe her judicial philosophy is consistent today and
will be in the future with the vision laid out by the President: that judges
should interpret law faithfully, not make law creatively.

I urge the Senate to follow the example set in the Roberts hearing and provide a
civil and efficient confirmation process—one that recognizes that, as the
President said, “judging is different from politics.” And I urge the Senators
and the American people not to rush to judgment—to wait until all the facts are
in and not make a decision based upon one snippet or a single news story.

The confirmation process has been fundamentally changed by technological changes
that allow the instantaneous and costless spread of information. In this age of
the 24-hour news cycle of blogs, talk radio, and cable news, there is a
seemingly constant vacuum to be filled with new information on the nominee.
Much of this revolution is for the good, as it allows the public to develop a
more informed view. But there are harmful effects as well. Unsubstantiated
rumors, false allegations, and distorted facts can be spread with impunity by
those who don’t take the time to check the facts—as well as by those who
affirmatively seek to mislead. And once such baseless claims and innuendo are
made, the Internet ensures that they take on a life of their own and can never
be fully rooted out.

In light of these changes, those who traffic in information owe all Americans a
duty to act in good faith, to avoid circulating falsehoods, and to verify
information before broadcasting it. The careers and reputations of good people
depend on that. And I urge the Senate to exercise discipline in its
consideration of judicial nominations. It is important that amidst all of the
static surrounding a nominee, the Senate focus on the characteristics that are
essential to good judging, seek out reliable information, and maintain the
dignity of a process that is essential to our democracy.

A dignified and fair confirmation process is important not only in filling seats
on the Court, but in presenting us with an opportunity for a robust national
discussion about judicial philosophy. In our constitutional system, the
importance of judicial restraint—the idea that judges interpret the law, not
make it—cannot be overstated. The consent of the governed rests at the very
core of our government. But judging is consistent with this democratic
principle only insofar as judges faithfully interpret the laws and the
Constitution that have been adopted through democratic processes.

Within our system of self-government, the judiciary plays a vital but
often-misunderstood role. As Chief Justice Marshall explained in Marbury v.
Madison, “it is emphatically the province and duty of the judicial department
to say what the law is.” But that was true only to the extent that the
judiciary was implementing duly enacted laws that represented the people’s
will.

James Madison said in Federalist 49: “The people are the only legitimate
fountain of power, and it is from them that the constitutional charter, under
which the several branches of government hold their power, is derived.”
Therefore, when judges import their personal preferences into constitutional
decisionmaking, it is as inconsistent with democratic ideals as if the judge
had ignored the clear text of a statute.

I have been a judge, so I am well aware that a court’s real source of power is
its legitimate role in our constitutional system. If a court strays from this
role, its decisions will not command respect – nor should they. And the surest
way for courts to cede legitimacy is to ignore the will of the people as
enshrined in the Constitution and in statutes—that is, for an unelected and
unaccountable branch to impose its policy preferences on the nation. To do so
is to undermine the consent of the governed, to deny the people their rightful
ability to express their will—our will—through the democratic process.

The framers of the Constitution conceived a separate branch of government where
judges would be independent and impartial. Of course, independence means
federal judges are relatively unaccountable. So this system only works when
the judiciary respects its place in it—which is why President Bush has sought
to appoint judges who do not come to the bench with an agenda. This is not to
say that a judge cannot have personal views on a subject, but judges must be
disciplined and not allow those views to affect their decisions.
Some believe that the courts, including the Supreme Court, sometimes do impose
their own policy preferences. I’d like to mention two judicial practices that
I believe are unwise because they can lead to this result. The first is the
use of foreign law in constitutional interpretation; the second is undue
reliance on legislative history in statutory interpretation.

I am troubled by a growing tendency to rely on the laws and judicial decisions
of foreign nations in interpreting the United States Constitution. This is
problematic for at least two reasons.

First, it is anti-democratic. Foreign judges and legislators are not
accountable to the American people. If our courts rely on a foreign judge’s
opinion or a foreign legislature’s enactment, then that foreign judge or
legislature binds us on key constitutional issues.

Second, reliance on foreign law in constitutional interpretation is unworkable.
There are 191 members of the United Nations and even more judicial systems, all
operating with different substantive laws. If an American judge wants to find
a law consistent with his or her personal opinion, it can be found. Chief
Justice Roberts in his confirmation hearing compared this to looking over the
crowd and picking out one’s friends. As a practical matter, it may be
impossible for even the most conscientious judge to avoid being arbitrarily
selective in the use of foreign law.

The same analogy Chief Justice Roberts used to question reliance on foreign law
has been used by certain Justices and others to caution judges against ignoring
a statute’s plain meaning based on a claim that the text does not reflect the
legislative intent. Congress, a democratically accountable branch, expresses
its will through the words that Members of Congress ultimately agree upon after
negotiation and then present to the President for his signature. That is the
process set forth in the Constitution, and Congress should be held strictly
accountable for the words they use in a statute. After all, the words of
statutes are all that ordinary Americans have to measure their conduct against.

If the statute’s text turns out to be inconsistent with the legislative will,
Congress can amend the statute. But for judges to ignore the statute’s plain
meaning and look instead to legislative history invites the same type of
picking and choosing of supportive statements that makes reliance on foreign
law so fundamentally anti-democratic. The temptation is to seize on a bit of
legislative history consistent with one’s personal policy preference. When a
judge gives in to that temptation, he or she undermines the legitimacy of the
judiciary and moves us further from a government of, by, and for the people.

I believe the President has sought to nominate federal judges who understand
these points, who believe in the appropriate role of the judiciary in our
constitutional system, and who seek to uphold the rule of law through judicial
restraint.

We in the Executive Branch honor the principles I’ve described by assisting the
President in nominating judges of that sort. The Senate honors those
principles by confirming those judges after fair and dignified hearings. I
believe that decades from now, when we consider the decisions of the judges and
justices nominated by President Bush, we will be proud of the contributions they
have made to upholding the rule of law and to our system of constitutional
government. In my opinion, that is the best legacy any President could
achieve.